Decisions – COA – Oct. 20, 2015

Bernard Hubbard v. State –  admissibility of prior bad acts – Hubbard was convicted of two counts of sexual battery/gratification of lust  of his de facto stepdaughter and sentenced to serve 30 years without parole as an habitual. The child reported it but her idiot mother did not believe her.  On appeal Hubbard argues that it was error for the court to allow two of Hubbard’s other victims to testify. The COA finds no error. “The trial judge held a hearing, where she heard proffers from both prior victims, and she heard extensive argument from the defense and prosecution. The judge then recited the legal standard at length and explicitly found on the record that the proffered testimony was more probative than prejudicial. She explained in detail why she found the evidence probative and discussed the potential for prejudice, which she found would be ameliorated by cautionary instructions.”   Hubbard also argues sufficiency of the evidence – an issue that meets its usual fate and Hubbard’s conviction is affirmed.

Gregory Campbell v. Catherine Wattsmodification of custody –   After their divorce in 2004, Greg and Catherine  shared  custody of Gavin until 2010, when Greg filed a petition for modification.  The chancellor granted it.  Three years later, Catherine filed a petition for contempt and for modification claiming that Greg was  withholding visitation.  The chancellor granted Catherine’s petition for modification, awarded each of the parties joint legal and physical custody and ordered Greg to pay  Catherine $300 a month in child support.   Greg appealed and the COA reverses because the chancellor failed to specify the change in circumstances warranting a modification. “Despite Catherine’s claims, the record reflects that she failed to present any proof that Greg’s living situation had changed at all since the modified divorce decree was entered, that it had adversely affected Gavin, or that Gavin was in any danger.”  The COA reverses and renders.

Kimberlee Bracther v. State – DUI/margin of error –  Bratcher was found guilty of DUI.  She challenges only the sufficiency of the evidence. Bratcher was stopped for speeding in the early hours of  February 2, 2012.  During the stop, the officer learned there was a warrant out for Bratcher’s arrest and had her exit the vehicle whereupon he noted that she was  staggering.  He called another officer to the scene and he administered  several field sobriety tests and two portable breath tests.   At the police station,  she registered .08 on the  Intoxilyzer 8000. On appeal she argues that the evidence was insufficient because  the court failed to factor in the “inherent” .005 margin of error of the dry-gas-ethanol-standard solution (dry gas) used to calibrate the intoxilyzer.  The State argues that  the .02 is not a margin of error but rather a tolerance.  “After reviewing the record, we agree with the State that the No. 0.020 Agreement is not a margin of error. By definition, it is an internal safeguard that causes the intoxilyzer to void breath-test results when it produces results that differ by more than .02.”

Garrett Enterprises v. Allen Utilities arbitration – can third party beneficiary compel arbitration –  In 2011, Garrett hired Allen  to be the manager of its construction division.  Garrett agreed to hire the employees of Allen’s limited liability company and to purchase the company Allen Utilities.  Garrett alleges that as part of Allen’s hiring it also agreed to “assume responsibility” for three subcontracts between Allen Utilities and Kensley R. Lee Contracting h related to utility construction contracts that Lee had with the City of Madison, the Town of Edwards, and the City of Calhoun City.  Garrett sued  alleging that at some point after Allen was hired, he began working with Lee to shift costs of the various projects from Lee to Garrett so as to benefit Lee and harm Garrett.  Allen asked the court to order arbitration arguing that he was a third party beneficiary of contracts between Garrett and Lee.  The trial court ordered arbitration.  Garrett appealed and the COA reverses. “In this case, the arbitration provision in the subcontracts between Lee and Garrett is limited to “[a]ll claims, disputes, and other matters in controversy between the Contractor [i.e., Lee] and the Subcontractor [i.e., Garrett]” (emphasis added). Garrett’s claims against 6 Allen and AU are not ‘between the Contractor and the Subcontractor.’ They are between ‘the Subcontractor’ and one of its former employees and his LLC. Thus, Allen and AU are not entitled to compel arbitration “under the terms of the agreement.'”

Dalphanie Lofton and Patrick Johnson v. Ruby N. Lofton – grandparent visitation – Ruby Lofton filed a petition for grandparent visitation with her daughter’s child  Lauren which the chancellor granted.  The parents, Dalphanie Lofton and Patrick Johnson, appeal. When Lauren was born in January 2010, Dalphanie lived with Ruby for two years. Ruby and her mother would look after Lauren while  Dalphanie worked.  Twice during this time. Ruby  took Lauren to the emergency room.  These visits triggered investigations by DHA of Lauren;s father Patrick.   Dalphanie and Lauren ended up moving in  with Patrick and cut off contact with  Ruby.  Ruby filed a suit for visitation and the court  found that visitation was in Lauren’s best interests and awarded visitation starting with two afternoon visits that progressed to one overnight visit a month, and finally to one weekend visit per month. Dalphanie and Patrick appeal.  The COA affirms.

Mississippi Code Annotated section 93-16-3(2)(Rev. 2013) establishes the framework for grandparent visitation. A grandparent may petition for visitation “when [she] has shown: (1) that a ‘viable relationship’ with [her] grandchild has been established, (2) that visitation with the grandchild has been unreasonably denied by the grandchild’s parent, and (3) that visitation is in the best interest of the grandchild.” Aydelott v. Quartaro, 124 So. 3d 97, 100 (¶9) (Miss. Ct. App. 2013) (citing Miss. Code Ann. § 93-16-3(2)).

The parties agreed that there was a viable relationship.  The parties dispute whether  Dalphanie and Patrick unreasonably denied visitation.

Dalphanie and Patrick contend that they did not unreasonably deny visitation because Ruby never requested to see Lauren. However, testimony showed that circumstances interfered with Ruby’s ability to visit Lauren. First, Ruby testified that Dalphanie changed her phone number and ceased communication with Ruby. Additionally, Ruby, Dalphanie, and Patrick also testified about an incident at Dalphanie and Patrick’s apartment complex, which resulted in Ruby’s banishment from the complex. Ruby also testified that when she saw Lauren in town, whoever was with her would keep Ruby from approaching her. Thus, the evidence indicated that Ruby could not easily request visitation.

Alternatively, Dalphanie and Patrick argue that ifthey did denyRubyvisitation, it was reasonable. At the hearing, Dalphanie and Patrick testified they denied visitation because Ruby and Bobbie Nell initiated the two DHS cases against Patrick. Dalphanie and Patrick admitted, however, that while they believed Ruby and Bobbie Nell reported Patrick, they had no proof. Further, Ruby and Bobbie Nell testified that neither of them filed a complaint with DHS against Patrick.

The COA agrees with the chancellor that the parents withheld visitation and affirms the award of visitation to Ruby.  (Apparently Ruby represented herself  on appeal.  Congratulations to her!).

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